Allowed

Babu T., S/O. Kunhikuttan, P.O.Kottayam v. Sreekumar, S/O. Divakaran Nair, Feroke

Kerala HC15 Nov 2018MACA/1602/2010

Case brief

AI extract

What is this about?

The High Court allowed this motor accident claims appeal against an award of Rs.78,060/-. Relying on the multiplier method and fixing expenditure at Rs.4,000/month despite lack of income proof, the Court increased the compensation to Rs.82,960/- plus additional amounts for pain and suffering, directing the insurer to pay within 30 days.

What did the court decide?

Compensation enhanced to Rs.82,960/- with additional amounts for pain and suffering, orderable within 30 days or attract penal interest.

Babu T., S/O. Kunhikuttan, P.O.Kottayam Vs Sreekumar… — Motor Accident Claims | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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THURSDAY ,THE 15TH DAY OF NOVEMBER 2018 / 24TH KARTHIKA, 1940

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MACA.No. 1602 of 2010

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AGAINST THE AWARD IN OPMV 1177/2002 of IST ADDL.M.A.C.T, KOZHIKODE DATED 08-10-2009

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APPELLANT/PETITIONER:

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BABU T., S/O. KUNHIKUTTAN, AGED 37 YEARS, THUVVAKOLI HOUSE, P.O.KAYALAM, MAVOOR (VIA),, KOZHIKODE.

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BY ADVS. SMT.K.V.RESHMI SRI.M.N.SANDEEP

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RESPONDENTS/RESPONDENTS:

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1 SREEKUMAR, S/O. DIVAKARAN NAIR, AGED 46 YEARS, 3 POTHERI QUARTERS,, CHERUVANNOOR AMSOM, DESOM, P.O.FEORKE,, KOZHIKODE, PIN - 673 631.

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2 THE NATIONAL INSURANCE CO.LTD. DIVISIONAL OFFICE, 11, NOOR COMPLEX,, MAVOOR ROAD P.O., KOZHIKODE, PIN - 673 001.

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BY ADV. SRI.A.R.GEORGE

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.No. 1602 of 2010

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JUDGMENT

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This appeal is preferred against the award in O.P. (MV)No.1177/2002 of the 1^st Additional Motor Accidents Claims Tribunal, Kozhikode by the injured. The appellant sustained injuries in a motor accident and the learned Tribunal awarded compensation of Rs.78,060/- with 6% interest and cost. Being aggrieved by that , the injured preferred this appeal.

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The accident was not disputed by the respondents in the lower court. The claimant's case was that on 06.02.2002 at 9. pm, he was riding a motor cycle KL-11/5 5419 from Kozhikode to Mavoor, when he reached at the place of occurrence, another vehicle KEZ 875 came from behind in an exorbitant speed and hit against the motor cycle, as a result, he sustained serious injuries. There was no serious contest from the side of the first respondent. The insurer admitted the insurance of the vehicle. The claimant did not adduce any oral evidence, but his documents were marked as Exts. A1 to A4 series. The disability certificate was marked as Ext.C1.

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MACA.No. 1602 of 2010

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The learned counsel appearing for the

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appellant contended that the injured was a mechanic and he was getting Rs.5,000/- per month. He has a permanent disability of 12% and the Tribunal awarded a very meagre amount.

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The learned counsel appearing for the insurer, Adv. A.R George, contended that just amount was awarded by the Tribunal and no further interference is necessary.

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In Yadava Kumar v. D.M. National

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Insurance Co. Ltd. (2010 (8) SCALE 567) Apex Court reiterated the principle in relation to the assessment of damages for personal injuries cases as follows:

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“ We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered.

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10. In some cases for personal injury, the claim could be in respect of lifetime's earning lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and

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MACA.No. 1602 of 2010

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reasonable sum. The conventional basis of assessing compensation in personal injury cases, and that is now recognised mode as to the proper measure of compensation-is taking an appropriate multiplier of an appropriate multiplicand.”

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In injury cases the damages are to be assessed separately as pecuniary and special damages. The object is to compensate injury so far as money can compensate. When compensation is to be awarded for pain, suffering and loss of amenities in life, special circumstances of the claimant have to be taken into account. Amount of compensation for non-pecuniary loss is not easy to determine, but award must reflect that different circumstances have been taken into consideration. Hence, the multiplier method has to be followed to calculate pecuniary loss upon annual basis.

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The assessment of compensation in permanent disability case would differ from person to person according to the nature of injury. Vast discretion is vested with the court for assessment of just compensation in injury cases. There can be no uniform standard and yardstick provided for assessing such compensation. When two persons sustain similar injury, that can attract the same compensation, but the heads under which, compensation can be attributed are truly amazing. The

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MACA.No. 1602 of 2010

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scope for awarding general damages and special damages are too wide for articulation. It is settled law that compensation for injury claims would be higher than that in death cases. The reason is that the injured has to suffer disability for the remaining period of his life. Generally in practical terms it is found that discretion vested in assessment has to be on the basis of injury sustained to the victim and also on the nature of evidence in that case.

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It is true that the appellant did not produce any documents to prove the income in the lower court. Even then, in view of Dixit Kumar and Ors. v. OM Prakash Goel (2017 ACJ 2057, it is better to fix the income as Rs.4,000/and he is entitled to get just amount as compensation. Respondents have no dispute with regard to Ext.C1 disability certificate. The age of the injured was 30 years and the multiplier is 17. The following additional compensation is awarded. The disability compensation is

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Rs.4,000x12x12x17/100=Rs.97,920/-. The learned Tribunal awarded Rs.48,960/- and the balance amount is Rs.48,960/-.

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Along with that, loss of income for four months additional Rs.10,000/-. For pain and suffering additional Rs.9,000/- and

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MACA.No. 1602 of 2010

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loss of amenities Rs.15,000/- are awarded. The appellant is entitled to get Rs.82,960/- (Rupees Eighty Two Thousand Nine Hundred and Sixty only) with 9% interest and proportionate cost in addition to the award amount. The insurer is directed to satisfy the award within 30 days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default.

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This appeal is disposed of, as above.

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Sd/-

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P.D.RAJAN JUDGE

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bng/17.11.18

Babu T., S/O. Kunhikuttan, P.O.Kottayam v. Sreekumar, S/O. Divakaran Nair, Feroke

Case brief

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Babu T., S/O. Kunhikuttan, P.O.Kottayam v. Sreekumar, S/O. Divakaran Nair, Feroke

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